Critics agree that much of Southeast Asia desperately needs judicial reform and rule of law. Yet, there is remarkably little comparative scholarship on law and legal institutions in the region. In this blog, I'll follow constitutional developments in Brunei, Burma (Myanmar), Cambodia, East Timor, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam, as well as the Association of Southeast Asian Nations (ASEAN).

Tuesday, November 8, 2011

The Court judges itself

A few times this fall I've reported that the Indonesian DPR passed legislation stripping the Mahkamah Konstitusi of much of its jurisdiction. Well, it turns out that the Court ruled the law unconstitutional and returned those powers to itself. It's a fascinating case of constitutional courts expanding their own jurisdiction, arguably much bolder than Marbury v. Madison because the Court's jurisdiction is nominally based on the 2003 Constitutional Court Law, not the 1945 Constitution itself. I've reposted The Jakarta Post article below because it's worth reading in full:

Justices restore court’s power

Ina Parlina, The Jakarta Post, Jakarta | Wed, 10/19/2011 8:10 AM*

The Constitutional Court revived its authority on Tuesday after annulling the latest additions in the newly revised law that had limited its powers of judicial review.

The court annulled 16 clauses in 10 articles from the 2011 Constitutional Court Law on Tuesday, including a controversial article that had stripped its authority to issue ultra petita verdicts — those that are beyond requests in a review case.

“If it concerns public interests, Constitutional Court justices should not only be fixated on a petition,” justice Akil Mochtar said during the hearing, adding that ultra petita was commonly used by constitutional courts in many countries.

He added that the argument claiming the bench had abused its power by delivering an ultra petita ruling was wrong.

“Institution of constitutional review, first born in the United States in 1803, was beyond what was requested by the plaintiff,” said Akil.

The House passed a second revision of the Constitutional Court Law in late June that includes significant changes to the court’s authority. The revision has widely been perceived as significantly limiting the bench’s authority and posing a potential threat to the court’s independence in handling future cases.

Aside from barring the court from delivering the ultra petita verdicts, the revisions also did not allow the court to change articles in a law and also put the court under the oversight of the House of Representatives, the government and the Corruption Eradication Commission (KPK).

Petitioned by a coalition of NGOs, a judicial review concerning the controversial articles was filed a week after the law’s enactment.

An individual named Fauzan also filed another judicial review against the ultra petita and the authority to change articles in a law.

Akil said the absence of the authority to change articles in a law would reduce the court’s flexibility in a review case.

“[The article] constraints the court to test the constitutionalism of norms,” he said.

He further argued that in cases that the court had annulled legal articles, there would be “an absence of law” if such arrangements are not available.

With Tuesday’s verdicts, the court has regained all of its authority prior to the second legal revision.

The court only rejected an article concerning the maximum age of a court justice.

It has kept the article that rules that court justices must be 47 at the youngest and 65 at the oldest.

Wahyudi Djafar from the Institute for Policy Research and Advocacy (Elsam), which is also a member of the coalition, said that Tuesday’s ruling was not only a victory for Indonesian democracy, but also proof of how poorly the House had performed in carrying out its legislative function.

“It is obvious that the House never tried to draft an appropriate regulation,” Wahyudi told The Jakarta Post after the hearing.

“Since the reformation era, they always try to hinder our democratic process in terms of establishing a good law as its foundation, including stripping citizens’ constitutional rights in the revision of law.”

Wahyudi admitted, however, that ultra petita authority had both positive and negative attributes.

“But you must see the bigger picture. Most of the cases concern public interests. It is for the greater public good not to harm or benefit only one side.”

The court’s recent ruling, which stated that Busyro Muqoddas should retain the position of chairman of the Corruption Eradication Commission (KPK) for the next four years, is an ultra petita ruling from a review of the 2002 KPK Law.

The plaintiff asked the court to clarify the definition of the KPK leaders’ four-year tenure and whether it is possible to replace someone such as Busyro.

The court also restored its authority to use laws other than the Constitution in their consideration in delivering a ruling.

“However, in certain cases the bench must see all laws as one system where laws should never overlap each other,” Akil said, adding that the new provision would only be an obstacle.

* Wow, I'm surprised I missed this article! Actually, I'm not because I was at an all-day conference on October 19, but still it's an important one.

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About Dom

Dominic Nardi is a third year Ph.D. student at the University of Michigan in the Political Science Department. He is interested in judicial politics in developing countries, particularly Myanmar, the Philippines, and Indonesia. His dissertation research focuses on how non-state actors influence judicial behavior. In addition to his research at the U of M, he has also worked for legal organizations in Indonesia and the Philippines and has published articles about judicial politics in Southeast Asia both in law reviews and in popular media.